Fear, prejudice, racial and religious antipathy should never be the basis for government policy, at least not in a republic that has worked so hard for nearly two and a half centuries to protect and promote a Constitution cherished for its democratic values and commitment to freedom. This was the ancient saying that Scalia frequently invoked to explain how bad history could still repeat itself.
“In times of war, the law may fall silent.” But we, the people, can’t.
Concerned that the removal and exclusion of Japanese residents would cause economic ruin for the territory, officials rejected the idea of wholesale internment on the islands.
Then in early 1943, the government circulated the infamous “Loyalty Questionnaire,” with the hope of recruiting interned Japanese Americans into the military. On December 17, 1944, Roosevelt issued Public Proclamation No.
By the time the Supreme Court rendered its decisions, the government’s decision to intern Japanese Americans based on assertions of “military necessity” and wartime exigencies were directly undercut by its own actions.
Indeed, the same Court that seemingly upheld the internment of Japanese Americans in Korematsu affirmed in Endo the right of those very same Japanese Americans to not be detained and interned.Earl Warren, who as Attorney General of California had been a leading proponent of internment, came to deeply regret his role.Scalia—commonly remembered as one of the most influential conservative justices to sit on the nation’s highest court—ranked Korematsu among the most egregious decisions in Supreme Court history, along with Dred Scott, while Justice Stephen Breyer has written that Korematsu has been so thoroughly discredited that it is hard to conceive of any future court referring to it favorably or relying on it.The irony was not lost on the interned, who had been forced behind wire fences based on racialized notions of ancestry and disloyalty—in other words, suspected as persons incapable of ever fully becoming Americans—and then were asked to fight for the U. On February 1, 1943, President Roosevelt announced his decision to let Japanese Americans enlist, and more than 26,000 served in the U. 21, ordering the internment camps to be closed and all remaining Japanese Americans to be released.The very next day—December 18, 1944—the Supreme Court released its Korematsu decision, upholding the constitutionality of the government’s internment policy and affirming the conviction of Fred Korematsu, 23-year-old Japanese American welder from San Leandro, California who had defied the government order to move to an internment camp. On the same day, the Court also released its decision on another lesser-known but arguably more important case dealing with internment: Ex Parte Endo. Nonetheless she’d been subjected to the extreme discrimination all Japanese Americans were made to endure at the time, and had been forced into an internment camp.Mitsuye Endo had lived in the California capital of Sacramento, worked for the California Department of Motor vehicles, was a practicing Christian, could neither speak nor read Japanese, and had a brother in the U. In the Endo case, the Court unanimously ruled that the U. government could not continue to detain a citizen who was “concededly loyal” to the United States.It stressed that “[a] citizen who is concededly loyal presents no problem of espionage or sabotage.The rounding up and internment of Japanese Americans had begun in May 1942, but before the end of the year, many young Japanese Americans were released from the camps to attend colleges in the Midwest and the East, while others were released to provide much-needed labor, especially in the fields.Never mind that the government never interned Japanese Americans en masse in Hawaii, which had the highest concentration of Japanese Americans in the country, and which was the physical location of the Pearl Harbor attack that triggered the mass incarceration.One could distinguish the niceties of the different constitutional or legal bases underlying the two cases and varying outcomes, but the very need to make such fine jurisprudential distinctions, I would argue, points to the practical inconsistencies.The history that some are invoking as support for a Muslim registry is not at all what they think it is.